Is Justice Kennedy Gettable?

Yesterday I was pleased to speak at the University of Michigan Law School, as part of a symposium on capital punishment.  As the only death penalty supporter there, amidst an All-Star cast of death penalty abolitionists, I faced a tough room.  But the folks at Michigan Law were gracious and hospitable, and I am grateful for their invitation.

One of the major themes of the day was whether, and when, the Supreme Court will abolish capital punishment through judicial review.  Nearly everyone there (except me) seemed to agree that the Court will do so, but there was disagreement about how long it will take.  At one point, Justice Kennedy was invoked: when will Justice Kennedy decide to join the movement toward full abolition?  After all, on the current Court: no Kennedy, no abolition.

I have thought about this question some, but I confess that after this gathering, I’m thinking about it in a slightly different way now.  One prominent abolitionist pointed to Justice Kennedy’s support for the existing Eighth Amendment proportionality framework, suggesting that it is this theory on which Justice Kennedy would most likely vote for abolition and on which he can bring in four other votes.  Others suggested that perhaps Justice Kennedy would adopt Justice Brennan’s sensibility about human dignity, a theme familiar to Justice Kennedy’s work in the area of constitutional rights for those in the LGBT community (such as Obergefell v. Hodges, Lawrence v. Texas, and Romer v. Evans).

When you put these pieces together, the idea of adding Justice Kennedy’s vote to that of Justices Breyer and Ginsburg (from Glossip v. Gross) makes some sense.  Then, the argument goes, Justices Kagan and Sotomayor naturally fall into line and, voila, you have five votes for judicially abolishing capital punishment.

I remain skeptical of this theory, and naturally hope that judicial abolition never happens.  But I want to dig a little deeper, exploring in particular Justice Kennedy’s work in other capital cases and his commitment to federalism.  It is true that Kennedy has been a leader in pushing the proportionality framework, but doing so with respect to a particular category of offender with reduced culpability is different from doing it for every capital case, no matter how brutal the crime, how strong the evidence, how good the lawyering, or how fair the trial.  Kennedy has long been someone who has advocated respect for the role of the States in the federal system.  And although he has served with several Justices who wrote opinions questioning the constitutionality of the death penalty per se, he has never joined any of those opinions.  I think those things might prove to be a counterweight to Kennedy’s other work.

But with Justice Kennedy, you just never know.  And I think he might prefer it that way.  Stay tuned.




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